Kuppuswami Nainar vs Rangaswami Goundan and Others

Satyanarayana Rao, J.—The point raised in this appeal is governed by the decision of a Bench of this Court reported in Syed Ghulam

Khadir Sahib and Others Vs. Viswanathayyar, by his mother and next friend, Parvathi Ammal and Others, which was approved by the Full Bench

in Salvapanthula Seshagiri Rao and Another Vs. Rebala Subbarami Reddy and Others, . The decree-holder is the appellant. He obtained a final

decree in a mortgage suit on 28th August, 1935. The first execution petition was filed on 29th August, 1938, which was rejected on'' 14th

October, 1938. The present execution application was filed on 23rd January, 1943, more than three years from the date of the final order on the

prior execution petition. In order to save limitation for this execution petition he relies upon an unnumbered execution application filed by him on

10th October, 1941, and returned on 13th October, 1941, for filing sale papers, filling up blanks and paying batta. Two weeks time was granted

for complying with these requisitions and the petition was re-presented a day after the expiry of the two weeks on 28th October, 1941. The

petition was again returned on 31st October, 1941, and was not re-presented to Court till 23rd January, 1943, when that unnumbered execution

petition was also filed along with the present execution petition with an application to excuse the delay in re-presenting the execution petition. It is

this unnumbered execution petition that the decree-holder relies upon as helping in saving limitation. The Courts below have held that the delay

should not be excused and dismissed the present execution petition and also rejected the unnumbered execution petition. This is exactly what

happened in Syed Ghulam Khadir Sahib and Others Vs. Viswanathayyar, by his mother and next friend, Parvathi Ammal and Others, . It is as if

the unnumbered petition was not in existence in the eye of the law and therefore the order refusing to excuse the delay is of no legal consequence.

There is no final order between the 14th October, 1938, and the filing of the present execution petition on 23rd January, 1943. There is no doubt

that on the principle of the decision in Natesa v. Ganapathia ILR (1940) Mad. 949 and the decision of the Privy Council in Govind Prasad v.

Pavankumar (1943) 2 M.L.J. 121 : L.R. 70 IndAp 83 : ILR (1943) Nag. 669 an unnumbered execution application is an application presented in

accordance with law as the requirements insisted upon are not any statutory obligations imposed by the Code but by the Civil Rules of Practice.

There is therefore no doubt that the application was one in accordance with law but unfortunately as it is not re-presented for a long time it did not

exist in the eye of law and the subsequent order rejecting it is of no consequence. The decisions of Somayya, J., in Bava C. Gopalaswami

Mudaliar Vs. The Executive Officer, Sri Thiagarajaswami Koil Devasthanam Tiruvarur and Another, and Juluri Venkataratnam and Others Vs.

Kollipara Ramakotayya and Another, are distinguishable because in those cases there is not much delay in re-presenting the unnumbered

application. In the decision of King, J., in Ramachandra Naidu Vs. Muthu Chettiar and Others, and the decision of Wadsworth, J., in Nataraja

Pillai Vs. U. Narayanaswami Iyer, , the application was not taken return of but was within the precincts of the Court and was finally dismissed by

the Court. In those cases there was clearly a final order on the unnumbered execution petitions which gave fresh start to limitation. The Civil

Miscellaneous Second Appeal therefore fails and is dismissed with costs. No leave.